The Chief Justice’s Brand of Textualism

If you’re reading this, you already know that the Supreme Court issued King v. Burwell today and that it was a 6-3 win for the government, with Chief Justice Roberts writing for the majority. The Chief’s opinion focused on the text, context, structure, and “scheme” of the statute in concluding that the phrase “established by the State under section 1311” includes exchanges established by the federal government under section 1321. Rick Hasen writes that this aspect of the Court’s opinion “rehabilitates a focus on the law’s purpose as a touchstone to interpretation, over a rigid and formalistic textualism that ignores real-world consequences.”

I agree generally with this sentiment. King shows that textualism can be flexible. But I want to use this post to put a bit of a finer point on it. Continue reading

ICYMI: King v. Burwell Panel at UW School of Law

The “upcoming” King v. Burwell event at UW School of Law is no longer upcoming. But if you missed it, here’s a brief write-up and a YouTube video of the event. It starts off with Prof. Sallie Sanford giving a practical overview of what we’re talking about when we talk about an “exchange.” Then I provide a quick summary of the relevant legal issues. Then Profs. Scott Schumacher and Kathryn Watts provide some perspective from the tax law and administrative law perspectives, respectively.

The event was meant for a general audience, so the discussion is not as in-depth as other King v. Burwell “debates” you might have seen. And it’s pretty quick; we wanted to save plenty of time for Q&A (which is not posted). But it was a fun and informative event, so give it a watch! Tell your friends! It’s better than Cats!


Justice Kennedy and a Functioning Congress

Earlier this week Justice Kennedy and Justice Breyer testified before a House Committee. I’m sure they made a lot of news with their statements, but obviously the news that caught my eye was related to King v. Burwell—the now-pending case involving the Affordable Care Act.

For example, Josh Blackman thinks that this portion of Justice Kennedy’s testimony might offer a clue into the Justice’s thinking on King:

We routinely decide cases involving federal statutes and we say, well, if this is wrong, the Congress will fix it. But then we hear that Congress can’t pass a bill one way or the other. That there is gridlock. Some people say that should affect the way we interpret the statutes. That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government.

Why is this relevant? Well, according to Prof. Blackman this statement “bears on the issue of King v. Burwell” at least in part because Kennedy is saying “that ‘gridlock’ should not impact whether the Court invalidates statutes.” As Prof. Blackman notes, during the King argument the Solicitor General “told the Court that ‘this Congress’ would not fix the ACA if the Court” ruled against the government. Moreover, Prof. Blackman draws a comparison between the potential “gridlock” point in King v. Burwell and a somewhat similar point that arose following Shelby County, which is that “the Court can give Congress a task they know they won’t do.”

I’m not in the business of reading tea leaves, so I’m not going to discuss whether Justice Kennedy’s statements actually have any predictive value for the decision in King v. Burwell. I am, however, in the business of writing about King v. Burwell, so I have two responses to Prof. Blackman’s post. Continue reading

King v. Burwell Oral Argument: Instant Reaction to Third-Hand Rumors

Unfortunately, the Supreme Court does not live-stream its arguments, so those of us not fortunate enough to be in attendance have to base our initial thoughts on reporting from folks at SCOTUSblog who scribble notes and run in and out of the courtroom. But it’s better than nothing! Some quick thoughts:

Doge v. Burwell

1. Context vs. Isolationism — It’s difficult (impossible?) to get a holistic sense of the argument from just following the live-blog reporting, but most of the questioning seemed to focus on the context and structure of the statute as a whole. Obviously, both sides rely on context, but framing the case as a question of context—as opposed to a question about an isolated phrase which is then tested against context—is likely good news for the government. Continue reading

Textualism Is Nothing Either Good or Bad, But Thinking Makes It So

In advance of the King v. Burwell oral argument, Jonathan Adler has an interesting post today on the fight over textualism in the case. Both sides claim the mantle of textualism; Prof. Adler argues that the challengers are the good guys in that fight. I disagree, but that’s not really the point of this post. Instead of arguing about who is better at textualism, I think the more relevant disagreement between the parties is the framing of the case: What is the question that textualism (or statutory interpretation more generally) is meant to answer in this case?

Maybe if Yorick had better health coverage . . . .

Maybe if Yorick had better health coverage . . . .

The challengers, Prof. Adler included, want to focus on the meaning of the phrase “established by the State.” It’s not hard to see why. Arguing “State means State!” has an obvious rhetorical appeal. And who could claim that “State” doesn’t mean state? Continue reading

Upcoming Event on King v. Burwell (in Seattle)

If you happen to be in Seattle (or will be on March 11) and you’re not already over-saturated with commentary, then please consider coming to the UW School of Law’s King v. Burwell panel discussion. Here’s the info:


King v. Burwell

Obamacare in the Supreme Court (Again)

Once again, the Supreme Court is set to examine the Affordable Care Act. After surviving a constitutional attack, the statute now faces a challenge based on its own text. Challengers claim that the plain language of the statute makes subsidies (a critical part of the ACA) unavailable on federally facilitated insurance exchanges. A panel of professors will discuss the case from the perspectives of health law, tax law, statutory interpretation, and administrative law.

Panel Presentation with Professors Sanford, Schumacher, Watts, and Ziff

Wednesday, March 11
12:30-1:20 p.m.
William H. Gates Hall, Room 119

Student sponsors: Federalist Society; American Constitution Society; Student Health Law Organization

The official flyer is here (suitable for framing)! Since we’ll have the benefit of already listening to and digesting the oral arguments, I expect this short program will provide an informative analysis from diverse doctrinal perspectives. For more in-depth analysis, feel free to check out my previous post under the King v. Burwell “tag”:

What the King Plaintiffs Actually Said

For those of you following the current debate about whether the King plaintiffs have standing to challenge the PPACA (either now, or if they ever had it), I figured folks might want to actually read the documents from the district court in which the plaintiffs actually made the statements and in which the statements were referenced by the plaintiffs’ attorneys. Here you go: Continue reading

A Festivus Airing of Grievances: Petitioners’ Brief in King v. Burwell

Happy Festivus everyone! As you know, a traditional Festivus celebration includes the “Airing of Grievances.”

Today, I’ll be celebrating that tradition with a list of grievances against the Petitioners’ brief in King v. Burwell, in no particular order.  Feats of Strength to follow! Continue reading

A Walk Through Halbig, King, and the ACA Litigation

Over at the Incidental Economist, Nicholas Bagley has posted an extremely useful walk through his posts on Halbig and King—the current ACA litigation that just reached the Supreme Court. If you’re new to the King-Halbig litigation, or even if you’ve been following it for some time, Bagley’s writings are “must read” material.

Ziff Notes

And because I’m unoriginal, I thought I’d do the same for my posts, now that this issue is heating up a bit: Continue reading

In King v. Burwell, the Challengers Find Their Inner Bill Clinton

It depends on what the meaning of the word “such” is. — Bill Clinton (maybe, if he were a lawyer in King v. Burwell)


The word “such” is having its fifteen minutes of fame with the recent PPACA litigation. Much of the government’s narrow textual argument hinges on the word “such”: Yes, section 1401 makes subsidies available on an exchange “established by the State.” But in the absence of a state exchange, section 1321 provides for the federal government to establish “such Exchange.” That “such” (along with numerous other contextual and structural indicators) means that the federal exchange is the functional equivalent of a state exchange when state exchanges are referenced elsewhere in the statute, including in section 1401. Continue reading